AHMEDABAD: In a blow to the Chief Minister, Mr Narendra Modi, the Gujarat High Court on Wednesday upheld the appointment of Lokayukta by the Governor, rejecting the state government’s plea, three months after it gave a split verdict.
The Gujarat government said it would appeal against the 2 to 1 majority decision in the Supreme Court after seeking legal advice.
Its petition was dismissed on Wednesday by Mr Justice V M Sahai, who was given the task of hearing the challenge against the appointment of Lokayukta following the split verdict of a division bench.
Mr Modi had maintained that the Governor, Ms Kamla Beniwal acted unconstitutionally in selecting the ombudsman as the state government had not been consulted.
Ms Beniwal had appointed retired judge, Mr Justice R A Mehta to the post of Lokayukta on August 25 triggering a confrontation with the state government.
The post had been lying vacant for eight years prior to that since November 2003.
"I could not persuade myself, that the writ petitions be allowed, and agree with the opinion of Justice Sonia Gokani," said Mr Justice Sahai.
"I am in complete agreement with the view taken by Justice Akil Kureshi that these writ petitions are to be dismissed. I do not find any merit in these writ petitions, accordingly, the writ petitions are dismissed," he added.
On October 11, Mr Justice Kureshi had upheld the decision of the Governor while Ms Justice Gokani had quashed warrant of appointment issued by the Governor terming it to be unconstitutional.
Legal experts said Mr Justice Mehta can assume office any time.
Mr Justice Mehta himself remained unfazed over the legal battle and the stands taken by rival political parties over his appointment, saying he is "totally indifferent" to this.
"No, not at all. I have remained totally indifferent in all these things," he said when asked if stands taken by political parties ever bothered him.
Mr Justice Mehta refused to comment on the court verdict, saying, "I have not seen the judgment and will only be able to comment after the final judgment."
"Our plea in the High Court was fundamental to the safety of the federal structure and also very central to the provision by the Constitution of India, as the decision of the Governor bypassed constraints and restraints imposed by the Constitution on the Governor’s office," the Gujarat government spokesperson, Mr Jaynarayan Vyas said.
Terming the entire uproar over the appointment of Mr Justice Mehta as Lokayukta as a ‘constitutional mini-crisis’, Mr Justice Sahai in his 80-page judgment said, "It has been sparked by the Chief Minister which compelled the Governor to exercise discretionary powers under Article 163 of the Constitution to protect democracy and rule of law."
Mr Justice Sahai described the present case as one of its own kind. "Extraordinary situations demand extraordinary remedies. While dealing with an unprecedented case, the Court has to innovate the law and may pass unconventional order keeping in mind that exceptional fact situation requires exceptional measures."
After the split verdict, the matter over the appointment of Lokayukta was referred to Mr Justice Sahai who had to decide points of differences frame by it.
The point of difference was that whether the consultative process between the Chief Justice of Gujarat High Court and Chief Minister had come to a close and whether there was a deadlock between the two dignitaries.
"Answer to the first point is that looking to the nature of consultation required for appointment of Lokayukta under Section 3 of the Gujarat Lokayukta Act, in the present case as a matter of fact, the consultative process between the Chief Justice and the Chief Minister had come to a close and there was a deadlock between the two dignitaries," Mr Justice Sahai’s opinion said.
"I am further of the considered opinion that impasse had occurred due to imprudent conduct and inaction of the council of ministers headed by the Chief Minister in refusing to accept primacy of opinion of the Chief Justice, and to follow the provision of Section 3 of the Act and Article 163 of the Constitution in forwarding the recommendation of the Chief Justice to the Governor for appointment of Justice (Retired) R A Mehta as Lokayukta, which had resulted into a gridlock," he said.
Mr Justice Sahai said once primacy of Chief Justice was established in recommending Mr Justice Mehta for Lokayukta post, after his letter to the Chief Minister on August 2, 2011, the Chief Minister wrote letter on August 18, 2011 to the Chief Justice and the Governor stating that his government would not be able to accept the name of Mr Justice Mehta, for the post of Lokayukta of Gujarat and requested for another name.
He said that by this act it appeared that Chief Minister tried to ‘scuttle’ the appointment of Mr Justice Mehta as Lokayukta.